UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

DINE CITIZENS AGAINST RUINING 

OUR ENVIRONMENT; SAN JUAN 

CITIZENS ALLIANCE, 

 Plaintiffs - Appellees, 

v. 

AL KLEIN, in his official capacity as 

Western Regional Director, Office of 

Surface Mining Reclamation and 

Enforcement, Denver, Colorado; OFFICE 

OF SURFACE MINING RECLAMATION 

AND ENFORCEMENT, a federal agency 

within the U.S. Department of Interior, 

 Defendants. 

------------------------------ 

ARIZONA PUBLIC SERVICE 

COMPANY, 

 Intervenor, 

BHP NAVAJO COAL COMPANY, 

 Intervenor - Appellant.

No. 11-1004 

(D. Colo.) 

(D.C. No. 1:07-CV-01475-JLK) 

ORDER DISMISSING APPEAL

Before O'BRIEN, GILMAN, and HOLMES, Circuit Judges.*

 

*

 Honorable Ronald Lee Gilman, Circuit Court Judge, United States Court of 

Appeals for the Sixth Circuit, sitting by designation. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 26, 2011

Elisabeth A. Shumaker 

Clerk of Court
- 2 - 

The Office of Surface Mining Reclamation and Enforcement (OSM) approved an 

application by BHP Navajo Coal Company (BNCC) to revise the mining plan at its 

Navajo Mine. Diné Citizens Against Ruining Our Environment and San Juan Citizens 

Alliance (collectively Citizens) sought judicial review under the Administrative 

Procedures Act (APA), 5 U.S.C. §§ 701-706. The district court concluded OSM had 

violated the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370h, in 

approving the application and remanded the case for further proceedings. BNCC seeks to 

appeal from the district court’s remand order. 1 Lacking jurisdiction, we must dismiss the 

appeal as premature. 

I. BACKGROUND 

The Navajo Mine is a large open pit coal mine on tribal reservation lands in 

northwestern New Mexico.2

 BNCC operates the mine under a long-standing lease with 

the Navajo Nation and a surface coal mining permit issued by OSM.3

 In December 2004, 

BNCC filed an application with OSM to revise its approved mining plan at the Navajo 

 

1

 BNCC also seeks to appeal from the district court’s order denying its motion to 

dismiss based on, inter alia, Citizens’ failure to exhaust administrative remedies and the 

statute of limitations/laches. That order by itself is not immediately appealable. See 

Decker v. IHC Hosps., Inc., 982 F.2d 433, 435 (10th Cir. 1992) (“Where . . . the basis of 

the motion to dismiss is not an immunity from suit, the courts hold that an order denying 

the motion is not immediately appealable.”). 

2

 Venue was proper in Colorado under 28 U.S.C. § 1391(e) because the agency 

decisions at issue in this case were made by OSM’s Western Regional office located in 

Denver, Colorado. Neither party contests venue.

3

 OSM has permitting and other authority over BNCC’s mine operations pursuant 

to the Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1201-1328. 
- 3 - 

Mine to include mining in a 3,800-acre area administratively designated as “Area IV 

North.” In October 2005, after performing an Environmental Analysis (2005 EA) and 

making a finding of no significant impact (FONSI), OSM approved the application. 

In July 2007, Citizens filed the instant lawsuit.4

 BNCC intervened. The district 

court concluded OSM’s approval of BNCC’s application was the type of action which 

normally requires preparation of an Environmental Impact Statement (EIS) under NEPA 

rather than a less comprehensive Environmental Assessment. The court then turned to 

the 2005 EA, concluding it was deficient in several respects. It remanded the matter to 

OSM to correct the deficiencies and reassess its FONSI.5

 

OSM and BNCC appealed. OSM later dismissed its appeal. It appears OSM is 

currently in the process of re-analyzing BNCC’s application. 

II. DISCUSSION 

BNCC attacks the district court’s decision on all fronts. Citizens claim there is no 

final, appealable, order under 28 U.S.C. § 1291 because the district court remanded the 

case to OSM for further proceedings. We agree. 

Our jurisdiction extends only to review of “final decisions of the district courts of 

the United States . . . .” 28 U.S.C. § 1291. “The purpose of the finality requirement is to 

avoid piecemeal review.” Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir. 1984). “A 

 

4

 BNCC’s surface mining permit must be renewed with OSM every five years. In 

2004, OSM renewed the permit. Citizens contested that renewal, but the district court 

determined the issue was mooted by OSM’s re-renewal of the permit in 2009. Citizens 

have not challenged that determination on appeal. 

5

 While noting it could require OSM to prepare an EIS, the district court 

determined it was more appropriate to remand the matter, permitting OSM to reconsider. 
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final decision is one that ends the litigation on the merits and leaves nothing for the court 

to do but execute the judgment.” Graham v. Hartford Life & Accident Ins. Co., 501 F.3d 

1153, 1156 (10th Cir. 2007) (quotations omitted). “The remand by a district court to an 

administrative agency for further proceedings is ordinarily not appealable because it is 

not a final decision.” Bender, 744 F.2d at 1426-27; see also Trout Unlimited v. United 

States Dep’t of Agric., 441 F.3d 1214, 1218 (10th Cir. 2006); Baca-Prieto v. Guigni, 95 

F.3d 1006, 1008 (10th Cir. 1996). This is often referred to as the administrative-remand 

rule. See, e.g., S. Utah Wilderness Alliance v. Kempthorne, 525 F.3d 966, 970 (10th Cir. 

2008); Trout Unlimited, 441 F.3d at 1218; Baca-Prieto, 95 F.3d at 1008.6

There is a “narrow” exception to the rule “when the issue presented is both urgent 

and important.” Trout Unlimited, 441 F.3d at 1218-19. “If these two conditions are met, 

this court will apply a balancing test and assert jurisdiction if the danger of injustice by 

delaying appellate review outweighs the inconvenience and costs of piecemeal review.” 

Id. at 1218 (quotations omitted). 

In this case, although the issues may be important (an issue we need not decide), 

they are not urgent. Issues are urgent when the party (usually the federal agency) raising 

them would be foreclosed from raising them in later proceedings. See, e.g., S. Utah 

Wilderness Alliance, 525 F.3d at 970 (concluding the issue was not urgent where 

potential intervenors can re-raise legal claims if BLM issues unsatisfactory decision on 

remand); Trout Unlimited, 441 F.3d at 1219 (the issue was not urgent where Defendants-

 

6

 As we explained in New Mexico ex rel. Bill Richardson v. BLM, 565 F.3d 683, 

698 (10th Cir. 2009), and reiterate infra, the administrative-remand rule is most 

appropriate when the action at issue is adjudicative or quasi-adjudicative. 
- 5 - 

Intervenors can seek administrative and judicial review if dissatisfied with the Forest 

Service’s decision on remand); Baca-Prieto, 95 F.3d at 1009 (appellate review was 

appropriate where agency would have no appeal following remand proceedings); Bender, 

744 F.2d at 1428 (finding urgency where agency could not seek review of its own 

administrative decisions and therefore may be precluded from appealing after remand). 

Here, OSM has no interest in pursuing this appeal and BNCC is not foreclosed from reraising (if necessary) its current issues in later proceedings or attacking any adverse 

decision resulting from remand. Although postponed review in this case might result in 

added costs, delay and uncertainty, such “inconveniences . . . do not create appellate 

jurisdiction where it does not otherwise exist.” Trout Unlimited, 441 F.3d at 1219 n.2; 

see also Boughton v. Cotter Corp., 10 F.3d 746, 752 (10th Cir. 1993) (“Although wellestablished rules of appealability might at times cause an action to be determined 

unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling 

the delay, harassment, expense, and duplication that could result from multiple or illtimed appeals.”) (quotations omitted). 

In opposing dismissal, BNCC principally relies on our decision in New Mexico ex 

rel. Bill Richardson v. BLM, 565 F.3d 683 (10th Cir. 2009), but it is inapposite. That 

case involved the BLM’s decision to amend the Resource Management Plan for New 

Mexico’s Otero Mesa to allow fluid mineral development and its later grant of an oil and 

gas lease on a portion of those lands. The district court found in favor of the BLM as to 

the claims pertaining to the amended Resource Management Plan, but concluded the 

BLM had violated NEPA in failing to conduct a site-specific environmental analysis prior 
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to issuing the oil and gas lease. It directed the BLM to prepare such analysis if it wished 

to execute the lease. The State of New Mexico, a coalition of environmental groups, and 

an organization promoting the interests of oil and gas producers in the State appealed. 

The BLM argued we lacked jurisdiction under the administrative-remand rule. We 

disagreed for two reasons. First, the administrative-remand rule is “most appropriate” 

when the agency has acted in an adjudicative capacity, i.e., when the agency has 

adjudicated rights. 565 F.3d at 697-98. Because the BLM’s decision to amend the 

Resource Management Plan was a policymaking decision, it was acting in a quasilegislative, not adjudicative, capacity. Id. at 698. Second, we determined the district 

court’s order did 

not square with the traditional notion of a “remand,” wherein the reviewing 

court returns an action to a lower court for further proceedings. The court’s 

order did not require BLM to recommence a proceeding, or indeed to take 

any action at all--it simply enjoined BLM from further NEPA violations. If 

[BLM] wishes to allow oil and gas leasing in the plan area it must 

undertake additional analysis based on the district court’s memorandum 

opinion, but it retains the option of ceasing such proceedings entirely. 

Id. at 698. 

Here, to the contrary, OSM’s approval of BNCC’s application was quasiadjudicative because it settled BNCC’s right to revise its mining plan to include mining 

in Area IV North. See id. at 699 n.17 (stating an agency’s issuance of a permit “falls 

closer to the traditional concept of adjudication than the resource management plan 

process at issue here because it settles the rights of specific parties”). And, unlike in 

Richardson, the district court specifically remanded this case to OSM to conduct further 

proceedings consistent with NEPA. 
- 7 - 

Finally, BNCC argues Citizens are estopped from claiming the district court’s 

order is not final or appealable because they made the opposite argument in a motion for 

summary decision before the United States Department of Interior’s Office of Hearing 

and Appeals (OHA).7

 This argument lacks merit because “no action of the parties can 

confer subject-matter jurisdiction upon a federal court. Thus, the consent of the parties is 

irrelevant [and] principles of estoppel do not apply . . . .” Ins. Corp. of Ireland, Ltd. v. 

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982) (citation omitted); see also

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 178 (1988) (a court “must independently 

determine as a threshold matter that [it has] jurisdiction”). 

APPEAL DISMISSED. 

Entered by the Court: 

Terrence L. O’Brien 

United States Circuit Judge 

 

7

 When BNCC filed its December 2004 application to revise its mining plan to 

include mining in Area IV North, it also proposed realigning Burnham Road, a public 

road traversing a portion of the Navajo Mine. OSM’s approval of the application was 

conditioned on, among other things, BNCC following OSM’s regulatory procedures for 

relocating a public road prior to disturbing Burnham Road. The district court concluded 

the realignment of Burnham Road was a “connected action” to BNCC’s revision of its 

mining plan and therefore NEPA required both actions to be addressed in the same 

environmental impact analysis. Prior to the district court’s decision, BNCC had applied 

for and received OSM’s approval to realign Burnham Road. Citizens challenged that 

approval with the OHA. In their motion for summary decision with the OHA, Citizens 

argued the OHA should vacate OSM’s approval of the realignment because the district 

court in this action had already determined the Burnham Road realignment was a 

connected action to the Area IV North mine expansion and therefore must be addressed 

in the same environmental impact analysis. They based their argument on principles of 

collateral estoppel and res judicata.